Are you making compelling offers to mediate?

Offering to mediate a personal injury or clinical negligence dispute is no longer considered a sign of weakness or an indication that you do not have the confidence to go to trial.

Recent cases on costs sanctions for failing to engage in mediation such as PGF II SA v OMFS Company 2013 and most recently Laporte and Christian v The Commissioner of Police for the Metropolis and the growing appreciation of the commercial benefits for lawyers of mediated settlements means very few litigators now hold this view.

If your firm does not already have one you should consider preparing a template letter for making offers to mediate. I suggest the letter includes the following:

  1. An offer to mediate including nomination of potential mediators;
    Put forward suggestions for an appropriate mediator. Invite your opponent to contact the mediators if they have not worked with them before and “interview” them to see if they are suitable.
  2. Reference the general obligations under the Pre-Action Protocol and the CPR;
    Paragraph 2.16 of the Pre-Action Protocol for Personal Injury Claims states “The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.”
    CPR 1.4(e) requires the court to encourage the parties to use ADR.
  3. Reasons mediation is appropriate at this stage;
    Examples may include the parties have sufficient information to settle the claim; costs are at risk of becoming disproportionate; issue fees will be incurred as the next step if settlement is not reached; mediation may resolve a discrete issue such as liability; the opportunity to consider settlement proposals outside the scope of a court settlement.
  4. Costs consequences of failing to engage in mediation;
    There are now numerous cases involving courts penalising parties for failing to engage in mediation including the two mentioned above. You can download our case digest of these matters. Ask opponents who intend to reject an offer to mediate give their reasons allowing you the opportunity to overcome any objections.
  5. Request for alternative methods of ADR if mediation is not deemed appropriate.
    If mediation is rejected does your opponent have any other suggestion for resolving the dispute?

This is the second post in our post in this series designed to help litigators new to mediation get a clear understanding of the steps in the process. Read the first post about which personal injury cases are suitable for mediation.

Please post comments below about your experience of responses to offers to mediate.

 

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